briefing note advancing freshwater protection - polis water … · 2018-09-11 · advance water...
TRANSCRIPT
ABOUT THIS BRIEF
Who is this brief for?This brief is intended for those seeking to better understand—and use and support—the options offered by the Water
Sustainability Act to address local water challenges.
Why now?This brief complements ongoing work by the POLIS Water Sustainability Project at the University of Victoria. It is meant to support communities and local organizations to inform and utilize key provisions in the Water Sustainability Act and encourage the provincial government to follow through on
further regulatory development and implementation of the Act.
How is this brief organized?1. Background and Purpose .....................................................................1
2. How This Brief Is Organized .................................................................2
3. Summary Table: WSA Tools at a Glance ......................................4–5
4. Water Sustainability Act Tools: Local Opportunities to Advance Water Sustainability ...............6
Water Objectives .....................................................................................7
Environmental Flows .............................................................................8
Water Sustainability Plans ...................................................................9
Sensitive Stream Designation ......................................................... 11
Water Reservations .............................................................................. 11
Advisory Boards ................................................................................... 12
Delegated Authority .......................................................................... 13
5. Conclusion: Moving Forward with a Partnership Approach ... 14
1. Background and Purpose
British Columbia’s 2016 Water
Sustainability Act (WSA) provides
promising tools and potential to
address water challenges and promote
sustainability. These include the ability to
better manage water as one integrated resource,
safeguard environmental flows, protect water
quality, integrate land and water decision-making,
and enable innovative approaches to planning
and governance.
Actual Water Sustainability Act implementa-
tion, however, is still in its infancy. Uncertainty
remains around how the Act’s main sustainability
and planning features will be triggered and used,
how local communities can be involved,
and how implementation will be supported
and resourced.
The WSA is only one of a myriad of
governance and legal tools available that can
(and should) be deployed by local, Indigenous,
and Crown governments alike to help address
water security and sustainability. This brief
focuses on the specific potential of the WSA.
Briefing Note
Advancing Freshwater ProtectionTools and Opportunities in British Columbia’s Water Sustainability Act
SEPTEMBER 20181
Oliver M. Brandes & Rosie SimmsPOLIS Water SustainabilityProject, Centre for Global Studies, University of Victoria
This brief is a companion to the 2015 report Awash With Opportunity: Ensuring the Sustainability of British Columbia’s
New Water Law (POLIS, 2015).2 It is part of a bundle of practical resources that the POLIS Water Sustainability Project and
associated partners have developed to build community capacity and understanding around the legal and policy tools to
advance water sustainability and watershed governance, including:
• BC Drought Message Guide (Canadian Freshwater Alliance, June 2018)3
• Handbook for Water Champions: Strengthening Decision-Making and Collaboration for Healthy Watersheds (Centre for
Indigenous Environmental Resources/POLIS, forthcoming Fall 2018)
• Protecting Water Our Way: First Nations Freshwater Governance in British Columbia (First Nations Fisheries Council, May 2018)4
• Water Sustainability Plans: Potential, Options, and Essential Content (Curran & Brandes, forthcoming Fall 2018)
Provincial staff and decision-makers alone will
not likely be able to implement this legislation.
Given the complexity of water challenges in B.C.,
and the need for solutions to be locally adapted to
the particular regional context and issues, realizing
the Act’s sustainability potential requires strong
partnerships and the collective capacity, action,
and expertise of Crown governments (federal-
provincial-local), Indigenous Nations, communities,
and local water champions working together to help
protect and steward our shared waters.
Watershed groups, and local and Indigenous
governments are often seeking to better understand
what the WSA might offer, and what they can
do to drive implementation. This brief provides
a preliminary overview of the Act’s primary
sustainability tools and outlines some of the key
considerations in deploying those tools. If groups
are strategic and prepared, this legislation can
enhance local efforts to protect their home waters
and watersheds.
2. How This Brief Is Organized
This brief is organized into five sections
and identifies seven main tools or
opportunities under the WSA. The
summary table in the next section
provides a brief overview of these seven tools or
opportunities, with a more detailed description
provided in the discussion that follows. Each
detailed description describes:
• what the tool is
• what watershed and governance issues it might
be able to help address
• possible roles for watershed entities in either
deploying the tool or supporting its use in the
context of local watershed challenges
• risks and benefits and any other considerations
The final section concludes and offers a path
forward towards a robust partnership approach
enabled in the legislative framework of the Water
Sustainability Act.
2
Provincial Roles and WSA Implementation
The WSA is administered by the Minister of Forests, Lands, Natural Resource Operations and Rural
Development (FLNRORD) and in this brief, unless otherwise noted, “Government” refers to this Minister
and Ministry.
Some specific roles and responsibilities for WSA development and implementation across the provincial
government include:
Ministry of Forests, Lands, Natural Resource Operations and Rural Development (FLNRORD)
• Delivery and statutory decision-making, for example:
– Administer the WSA, including all statutory decisions pertaining to surface and groundwater
licences
– Other programs and related statutes, for example dam/dike safety, flood management, drought
management, and utility regulation
– Issue enforcement orders
• Monitoring and reporting
• Joint leadership of WSA, including developing related pilots, plans, and agreements
Ministry of Environment and Climate Change Strategy (MoECC)
• Policy, legislation, and science monitoring, for example:
– Provincial water strategies and policy, legislation, and regulation development
– Water objectives, standards, and guidelines
• Advice, guidance, and support to statutory decisions
• Monitoring networks
• Transboundary and inter-governmental agreements
• Joint leadership of WSA including developing related pilots, plans and agreements
Ministry of Indigenous Relations and Reconciliation (MIRR)
• Lead the B.C. Government in pursuing reconciliation with First Nations and Indigenous People of
British Columbia
• Advance and implement government-to-government agreements with Indigenous Nations, including
supporting plans and pilots associated with the WSA (e.g. providing support and financial resources
in partnership with First Nations)
• Adopting and implementing the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP), and the Calls to Action of the Truth and Reconciliation Commission, including reviewing
policies, programs, and legislation to determine how to bring the principles of the declaration into
action in British Columbia
3
3. Summary Table: WSA Tools at a Glance
TOOLS WHAT IS IT/PRIMARY PURPOSE? WATERSHED PROBLEM IT SOLVES CROWN ROLES AND RESPONSIBILITIES POSSIBLE WATERSHED GROUP/ENTITY ROLES
Water Objectives (s. 43) – Establishes thresholds for water quality, quantity, and aquatic ecosystem health to sustain specified water uses or for supporting aquatic ecosystems
– Provides link between land and water decision-making
– Can be set at a variety of scales (from provincewide to watershed- or stream-specific)
– Water quality, quantity, temperature, or riparian concerns
– Cumulative impacts from multiple land and water decisions that can undermine watershed health or function
– Consistent consideration of water in decision-making
– Objectives are set in regulation by Order in Council and could be set as partof a Water Sustainability Plan process or separately
– MoECC leads policy development and supports implementation
– FLNRORD implements (other ministries and local governments could alsobe responsible for implementation)
– Through a rigorous process, describe locally appropriate (and specific) Water Objectives (targets and thresholds) based on Indigenous and scientific knowledge to inform government
– Encourage FLNRORD to implement these objectives as WSA Water Objectives
– Role in monitoring and reporting on state of the water(shed)
Environmental Flows and Critical Flows (e.g. s. 15; 86-88; 124(o))
– Builds a robust regime to ensure legal protection for adequate water flows for fish and watershed health and function
– Future overallocations, protecting water for nature and safeguarding critical flows during periods of drought or shortage
– Any non-domestic water licensing decision (surface or groundwater) requires the statutory decision-maker to consider the impacts on environmental flows
– Minister or Cabinet declaration of “significant water shortage” triggers a critical environmental flow threshold determination and can safeguard a minimum water level ahead of all licensed users
– A fish population protection order is triggered when the Minister deems that “the flow of water in a specified stream is or is likely to become so low that the survival of a population of fish in the stream may be or may become threatened”
– Develop (with Indigenous nations) the necessary methodology and specific region/stream-specific environmental flows thresholds and standards
– Role in monitoring and reporting on state of the water(shed)
Water Sustainability Plans
(s. 64-85)
– Sophisticated and comprehensive planning tool to help resolve water conflicts, address watershed restoration needs, or risks to water quality
– Provides a sustainable watershed vision and creates a framework to adapt to future challenges and improve management and decision-making
– Overallocated watersheds, persistent water supply and demand concerns, or compromised environmental flows
– Degraded ecosystems/habitat (changes to land use and riparian areas)
– Areas with ongoing water conflict and in need of comprehensive and innovative local-based solutions
– Address risks to water quality
– Triggered by conflict between water users, or between the needs of water users and environmental flow needs, or to address risks to water quality or aquatic ecosystem health (see s. 64)
– Government must order the Plan (but third party can request Minister to initiate a Water Sustainability Planning process and Minister can designate a responsible person or entity to develop the Plan (s. 66 (2)(a))
– A wide range of supporting or driving activities for local entities are possible, including:
– encourage the Province to initiate a Water Sustainability Plan
– develop supporting research or sate of the local waters assessments
– advise and support during plan development
– be designated as the entity responsible for developing the Plan
Sensitive Stream Designation (s. 128)
– Provides additional protection for identified Sensitive Streams (which can include tributaries and aquifers) allowing for possible additional requirements related to licensing, diversions, authorizations, change approvals, monitoring, and mitigation
– Contributes to the protection of a fish population whose sustainability is at risk because of current or future activities and ongoing damage to the aquatic ecosystem
– Threatened, vulnerable, or Sensitive Streams or fish populations with particular ecosystem values
– Sensitive Streams would need to be designated by regulation (Order in Council)
– Sensitive Streams were brought into the WSA in 2016 (formerly in the Fish Protection Act)
– 15 streams were previously designated as “Sensitive” under the Fish Protection Act; no further streams have been added under the WSA as of yet
– Encourage Government to designate specific valuable rivers/streams as Sensitive Streams, and help define the licensing, monitoring, and mitigation criteria that should apply.
Water Reservations (s. 39) – A legal means of retaining unreserved (unlicensed) surface or groundwater for future use (e.g. retain water in a stream or aquifer, for fish, treaty, or municipal use)
– Areas where potential future uses (or anticipated growth) might limit water availability for environmental flow needs, social, municipal, or Indigenous water supply
– Authority to reserve water rests with the Lieutenant Governor in Council (Cabinet) through an Order in Council
– This process may be initiated by an external person/body or from within Government; a Water Sustainability Planning process could also result in a Water Reservation
– Order in Council process is supported by analysis undertaken by staff within MoECC and/or FLNRORD and ultimately led by the FLNRORD Minister
– Encourage governments to create a reservation to protect flows for fish and for other important ecological, cultural, economic, and social water uses
Advisory Boards (s. 115) – Offers a formalized mechanism to provide enhanced expertise to inform policy and management, and improve statutory-decisions under the WSA (e.g. methods and considerations for determining environmental flows, critical flows, and Water Objectives)
– Complex situations (or persistent water challenges) where additional advice and expertise concerning water quality, quantity, environmental flows, or watershed health is needed to enhance decision-making and management
– Triggers not specified so requires interest and action by Government
– Advisory Board Chair & members are appointed by the FLNRORD Minister (s. 115 (2))
– Recommend who should sit on an Advisory Board, or potentially becomean Advisory Board member providing expertise and input to statutory decision-makers
Delegated Authority
(s. 126)
– A mechanism to draw down decision-making authority under the WSA to another person or entity; decision-making is limited to decisions of the comptroller, water manager, engineer, or officer.
– Demands for more local control or persistent conflict where local knowledge, expertise, and capacity would improve decision- making
– Triggers and criteria not yet specified
– This section of the Act is still in development but there are possibilities for delegated authority, including as part of a comprehensive Water Sustainability Plan development process
– Could draw down Provincial authority for specific aspects of WSA decision-making (see nuances and caveats on p. 13)
4
TOOLS WHAT IS IT/PRIMARY PURPOSE? WATERSHED PROBLEM IT SOLVES CROWN ROLES AND RESPONSIBILITIES POSSIBLE WATERSHED GROUP/ENTITY ROLES
Water Objectives (s. 43) – Establishes thresholds for water quality, quantity, and aquatic ecosystem health to sustain specified water uses or for supporting aquatic ecosystems
– Provides link between land and water decision-making
– Can be set at a variety of scales (from provincewide to watershed- or stream-specific)
– Water quality, quantity, temperature, or riparian concerns
– Cumulative impacts from multiple land and water decisions that can undermine watershed health or function
– Consistent consideration of water in decision-making
– Objectives are set in regulation by Order in Council and could be set as partof a Water Sustainability Plan process or separately
– MoECC leads policy development and supports implementation
– FLNRORD implements (other ministries and local governments could alsobe responsible for implementation)
– Through a rigorous process, describe locally appropriate (and specific) Water Objectives (targets and thresholds) based on Indigenous and scientific knowledge to inform government
– Encourage FLNRORD to implement these objectives as WSA Water Objectives
– Role in monitoring and reporting on state of the water(shed)
Environmental Flows and Critical Flows (e.g. s. 15; 86-88; 124(o))
– Builds a robust regime to ensure legal protection for adequate water flows for fish and watershed health and function
– Future overallocations, protecting water for nature and safeguarding critical flows during periods of drought or shortage
– Any non-domestic water licensing decision (surface or groundwater) requires the statutory decision-maker to consider the impacts on environmental flows
– Minister or Cabinet declaration of “significant water shortage” triggers a critical environmental flow threshold determination and can safeguard a minimum water level ahead of all licensed users
– A fish population protection order is triggered when the Minister deems that “the flow of water in a specified stream is or is likely to become so low that the survival of a population of fish in the stream may be or may become threatened”
– Develop (with Indigenous nations) the necessary methodology and specific region/stream-specific environmental flows thresholds and standards
– Role in monitoring and reporting on state of the water(shed)
Water Sustainability Plans
(s. 64-85)
– Sophisticated and comprehensive planning tool to help resolve water conflicts, address watershed restoration needs, or risks to water quality
– Provides a sustainable watershed vision and creates a framework to adapt to future challenges and improve management and decision-making
– Overallocated watersheds, persistent water supply and demand concerns, or compromised environmental flows
– Degraded ecosystems/habitat (changes to land use and riparian areas)
– Areas with ongoing water conflict and in need of comprehensive and innovative local-based solutions
– Address risks to water quality
– Triggered by conflict between water users, or between the needs of water users and environmental flow needs, or to address risks to water quality or aquatic ecosystem health (see s. 64)
– Government must order the Plan (but third party can request Minister to initiate a Water Sustainability Planning process and Minister can designate a responsible person or entity to develop the Plan (s. 66 (2)(a))
– A wide range of supporting or driving activities for local entities are possible, including:
– encourage the Province to initiate a Water Sustainability Plan
– develop supporting research or sate of the local waters assessments
– advise and support during plan development
– be designated as the entity responsible for developing the Plan
Sensitive Stream Designation (s. 128)
– Provides additional protection for identified Sensitive Streams (which can include tributaries and aquifers) allowing for possible additional requirements related to licensing, diversions,authorizations, change approvals, monitoring, and mitigation
– Contributes to the protection of a fish population whose sustainability is at risk because of current or future activities and ongoing damage to the aquatic ecosystem
– Threatened, vulnerable, or Sensitive Streams or fish populations with particular ecosystem values
– Sensitive Streams would need to be designated by regulation (Order in Council)
– Sensitive Streams were brought into the WSA in 2016 (formerly in the Fish Protection Act)
– 15 streams were previously designated as “Sensitive” under the Fish Protection Act; no further streams have been added under the WSA as of yet
– Encourage Government to designate specific valuable rivers/streams as Sensitive Streams, and help define the licensing, monitoring, and mitigation criteria that should apply.
Water Reservations (s. 39) – A legal means of retaining unreserved (unlicensed) surface or groundwater for future use (e.g. retain water in a stream or aquifer, for fish, treaty, or municipal use)
– Areas where potential future uses (or anticipated growth) might limit water availability for environmental flow needs, social, municipal, or Indigenous water supply
– Authority to reserve water rests with the Lieutenant Governor in Council (Cabinet) through an Order in Council
– This process may be initiated by an external person/body or from within Government; a Water Sustainability Planning process could also result in a Water Reservation
– Order in Council process is supported by analysis undertaken by staff within MoECC and/or FLNRORD and ultimately led by the FLNRORD Minister
– Encourage governments to create a reservation to protect flows for fish and for other important ecological, cultural, economic, and social water uses
Advisory Board
(s. 115)
– Offers a formalized mechanism to provide enhanced expertise to inform policy and management, and improve statutory-decisions under the WSA (e.g. methods and considerations for determining environmental flows, critical flows, and Water Objectives)
– Complex situations (or persistent water challenges) where additional advice and expertise concerning water quality, quantity, environmental flows, or watershed health is needed to enhance decision-making and management
– Triggers not specified so requires interest and action by Government
– Advisory Board Chair & members are appointed by the FLNRORD Minister (s. 115 (2))
– Recommend who should sit on an Advisory Board, or potentially become an Advisory Board member providing expertise and input to statutory decision-makers
Delegated Authority
(s. 126)
– A mechanism to draw down decision-making authority under the WSA to another person or entity; decision-making is limited to decisions of the comptroller, water manager, engineer,or officer.
– Demands for more local control or persistent conflict where local knowledge, expertise, and capacity would improve decision- making
– Triggers and criteria not yet specified
– This section of the Act is still in development but there are possibilities for delegated authority, including as part of a comprehensive Water Sustainability Plan development process
– Could draw down Provincial authority for specific aspects of WSA decision-making (see nuances and caveats on p. 13)
3. SUMMARY TABLE: WSA TOOLS AT A GLANCE continued
5
• What specific water/watershed problems are
you trying to address?
• Do you have information/data about the issue?
• What capacity (e.g. human, financial) do you
need to use this tool? What capacity do you have?
PAUSE
• Do Indigenous nations and the communitysee the issue as a local priority?
• Who will champion/lead/convene?
• What is your relationship like with regional provincial staff
and decision-makers who would be implementing the tool?
Before reaching for a solution (within or beyond the WSA) consider:
Another opportunity for watershed groups to
exert influence in policy and law reform is to give
input on provincial draft regulations and policies
during comment and development periods.
Template submissions are often available from
the First Nations Fisheries Council, University of
Victoria’s Environmental Law Centre, Canadian
Freshwater Alliance, POLIS Water Sustainability
Project, and other organizations.
4. Water Sustainability Act Tools: Local Opportunities to AdvanceWater Sustainability
The seven WSA tools summarized
in this section are not mutually
exclusive. Instead, they should be seen
as a bundle of options that can be
combined in a crosscutting and integrated way
for achieving maximum freshwater protection.
Developing an environmental flows threshold,
for instance, could inform both Water Objectives
and Water Sustainability Plan development, be
further supported by a Water Reservation and
a Sensitive Stream designation, and used by
Indigenous nations to signal their expectations
on environmental flow protection to senior
Crown governments. Ultimately the mix of WSA
mechanisms deployed will depend on the nature
of the water/watershed problem, the local history,
economic development priorities, and the role of
Indigenous laws and authority in their traditional
territories in a specific region.
It is expected that the provincial government
will initially focus on implementation of a few of
the WSA’s core elements. These initial priorities
include: transitioning existing groundwater users
into the regulatory regime; continued regulation
and program development in areas such as
Measuring and Reporting, Livestock Watering,
Water Objectives, and Environmental Flows;
as well as a provincial Watershed Governance
Pilots Program5 to test innovative planning and
governance approaches.
6
WATER OBJECTIVESKEY CONSIDERATIONS/RISKS
• Water Objectives can be made binding on
different land and resource-use decision-makers;
regulation would need to specify which decision-
makers (including local government) in a given
watershed must consider the Objective.
• Set in Order in Council—requires interest and
action by Ministry and Cabinet.
• Often requires a political champion.
• Not yet clear how WSA objectives relate to: a) the
existing Water Quality Objectives set by Ministry
of Environment and, b) the Provincial Cumulative
Effects Framework.
WATER OBJECTIVES (SECTION 43)
What is it? Water Objectives are a way of setting
water/watershed thresholds or targets in regulation
that will influence decision-makers. They establish
criteria for water quality, quantity, and aquatic
ecosystem health (e.g. environmental flows levels,
water quality standards, temperature) that land
and resource use decision-makers (including local
government) are required to consider when making
their individual decisions or plans. They can apply
to the landscape or site-specific level and are a
critical means to get away from the current siloed
and “death by a thousand cuts” approach to land/
water decision-making.6
What problem does it solve? Water Objectives
are set in regulation to sustain the necessary water
quality or quantity for specified uses of water (e.g.
drinking) or to sustain aquatic ecosystems.
How does it work? Water Objectives are an
important way the WSA reaches “out of the water”
to influence decision-making on the land. To this
end, the regulations that create Water Objectives
can, for instance:
• Require that a decision-maker under a specified
Act (e.g. under the Forest and Range Practices
Act) consider the Water Objective in his/her
decision.
• Authorize a decision-maker to impose terms
and conditions on, for example, permits that
may have an impact on the Water Objective.
• Apply to local government planning processes:
– Require that a regional district consider
specified Water Objectives when developing,
amending, or adopting a regional growth
strategy.
– Require that a municipality (or local trust
committee in the Gulf Island Trust area)
consider specified Water Objectives when
developing, amending, or adopting an official
community plan.
• Require Water Objectives be addressed in plans
made under other Acts.7
Water Objectives are a critical means to link and
integrate cross-Ministry land and water decision-
making. They are potentially powerful tools to
address water supply, quality, and aquatic habitat
issues, as objectives can be set to prioritize water in
other legislation.8
Roles for watershed group/entity? Although the
specific process for developing water objectives is
not yet settled, a rigorous method will necessarily
be required with some consistency across the
province. A local watershed entity could help
describe locally appropriate Water Objectives
based on Indigenous and scientific knowledge—
potentially using any provincial guidelines or
methodologies as these are developed. It could
then encourage FLNRORD to implement these
objectives as WSA Water Objectives (separately or
as part of a Water Sustainability Planning process
or area-based regulation).
If the local watershed entity positioned itself
as an Advisory Board (see p. 12), it could also have
a direct conduit to provide advice on methods of
determining Water Objectives as per section 115
of the Act. Local watershed entities could also
be involved in monitoring watershed outcomes
and implementation of Water Objectives.
7
ENVIRONMENTAL FLOWSKEY CONSIDERATIONS/RISKS
• Establishing the necessary site-specific
environmental flows threshold and standards can
be a costly process.
• These provisions do not deal with existing
overallocations, so could have limited impact in
fully subscribed systems.
• No binding requirement for decision-makers to
use environmental flows methods/thresholds
unless set in regulation (as opposed to current
policy).
• Key linkages between environmental flows
and Aboriginal rights must be established and
acknowledged.
ENVIRONMENTAL FLOWS9
AND CRITICAL FLOWS THRESHOLDS
(SECTIONS 15; 86-88; 124(o))
What is it? Environmental flows, according to the
WSA definition, refers to the “volume and timing
of water flow required for the proper functioning of
the aquatic ecosystem of the stream.” Although this
definition focuses on water quantity, the broader
reference to “proper functioning” does create a
useful opening to link to water quality and broader
watershed health considerations.
Legally, it is important to distinguish between
environmental flows and critical environmental
flow thresholds. Critical environmental flow
thresholds are “the volume of water flow below
which significant or irreversible harm to the aquatic
ecosystem of the stream is likely to occur” (s. 1(1)).
In other words, environmental flow regimes
support aquatic ecosystems to thrive, while critical
flow thresholds are the minimum flows for aquatic
ecosystems to survive. The WSA is one important
conduit to legally safeguard environmental flows,
but many other legal tools also exist, for example
the federal Fisheries Act and its provisions regarding
habitat as a potentially powerful vehicle through
which to advance environmental flows protection.
What problem does it solve? Providing legal
protection for environmental (and critical) flows
is fundamental for long-term watershed health
and function, and to help build resilience for local
fisheries. Using a basic premise of CPR (conserve,
protect, restore) for local streams, aquifers,
lakes, and watersheds requires explicit attention
to environmental flows. No drought response
is complete without an explicit ability to protect
minimum flows so rivers and streams don’t run
dry and fish and wildlife have enough water
to survive.
How does it work? No one single provision
exists in the WSA related to environmental flows.
Instead, many different aspects of the Act can
be used in conjunction to address water supply
and environmental flow-related issues. The
opportunities include:
• Section 15 requires statutory decision-makers
to consider the impacts of their decisions on
environmental flows (but does not set out what
the decision-maker must consider or how).
• Section 127 enables the Province to create a
regulation to prescribe methods for determining
environmental flow needs.
• Sections 86-88 sets out two separate tools:
critical environmental flows and fish population
protection orders. In both cases the legislation
can require licence holders to stop or reduce
water use during periods of drought to protect
ecosystems and fish.
Environmental flows are also important
considerations in any of the planning instruments
(e.g. Water Sustainability Plans, Area-based
Regulations, Sensitive Stream designations) and
in habitat or riparian considerations related to
the construction of other “works” in and about
a stream (s. 11).
8
WATER SUSTAINABILIT Y PL ANSKEY CONSIDERATIONS/RISKS
• Would need to be explicit of the complementing
Indigenous law framework and ensure explicit
attention to securing a co-governance role during
Plan development and implementation.
• May be difficult to find “win-win” scenario that
satisfies all interests.
• There may be financial cost related to
compensation to affected licence holders.
• Risks:
– Water Sustainability Plan is developed but not
implemented or endorsed by all the partners.
– Lengthy and costly planning process yields
minimal changes to land/water use that might
not address all the key concerns.
– Insufficient resources (or political commitment)
to follow through on implementation.
Roles for watershed group/entity? Many
potential roles exist for local entities in supporting
implementation of the various environmental flows
aspects under the new Act, such as:
• Selecting the most appropriate method of
determining environmental flows in the specific
creeks and rivers within the watershed,10 and
then supporting regional staff, rights holders,
and other partners to adopt this method as part
of the required consideration associated with
future licensing decisions (s.15 obligations).
• Determining the appropriate environmental
flow and critical flow thresholds (drawing on
Indigenous and local knowledge and science),
and then support Government to have these
thresholds set in regulation for the local
watershed. Since adequate flows of high-quality
water are the basis of fulfilling Aboriginal rights,
Indigenous nations necessarily play a critical
role in establishing and asserting environmental
and critical flows thresholds.
• If the watershed entity positioned itself as an
Advisory Board (see p. 12), it could also have a
direct conduit to provide advice on methods of
determining locally appropriate environmental
flow needs (as per section 115 of the Act).
• Local entities can also play a role in
environmental flows monitoring.
WATER SUSTAINABILITY PLANS
(SECTIONS 64-85)
What is it? Water Sustainability Plans are region-
or watershed-specific plans that can be developed
to prevent or address conflicts between water
users or between the needs of water users and
environmental flow needs, or to address risks
to, and restoration for, water quality or aquatic
ecosystem health. Water Sustainability Plans can
be comprehensive, multi-party negotiated
agreements with legal “teeth,” bringing together
Crown and Indigenous governments, water users,
and communities to set out a vision and actions
to address specific and persistent watershed issues.
What problem does it solve? Water Sustainability
Plans offer a sophisticated way to deal with
significant water issues in a region in an ongoing
and adaptive way. They are the primary way to
deal with existing water licence/allocations. For
example, regulations associated with these plans
can change the amount of water that licensees may
divert, change conditions of water use, or even
9
cancel (‘claw back’) water in overallocated systems.
Plans can also affect land uses and decision-making
under other Acts in relation to water.
Water Sustainability Plans offer a way to
address the new water realities climate change is
creating in B.C. With water deteriorating in both
supply and quality, new approaches are needed
that break down siloed decision-making and the
separation of land/water issues. Water Sustainability
Plans have the potential to reorganize power and
authority, including co-governance or parallel
authority approaches with Indigenous and Crown
governments. Water Sustainability Plans can also
lead to enforceable standards, objectives, and rules
that change both water use (e.g. restricting uses
during times of scarcity) and activities on the
land (e.g. changing practices that cause harm or
disruption to water quality or the water cycle).
How does it work? Water Sustainability Plans
are highly adaptable and so can take many forms.
Recent detailed analysis11 offers a deeper analysis of
the potential and opportunities and has identified a
number of potentially core elements likely present
in any future plans, including:
• an adaptive implementation approach that is
consistent with Indigenous laws
• acknowledgement and incorporation of
Aboriginal rights
• a watershed vision
• articulation of Water Objectives
• integrated hydrological and land-use planning
• environmental flows thresholds and
identification of appropriate methodologies
• future licensing or dealing with existing
overallocated licences
• drought response
• creation of any necessary Water Reservations
Water Sustainability Plans have the potential to
articulate various levels of drought response and
also change land uses that impact water systems,
thus offering localized approaches to dealing with
drought or changing water supply regimes, better
adapting water allocations to local priorities, or
improving land use planning that can protect
local waters and watersheds.12 Robust processes
are required to ensure a plan achieves broad
community buy-in and water user and industry
support (e.g. co-led by Indigenous Nations and
the Province; opportunities for community,
stakeholder and local government engagement and
participation). If the majority of water users and
authorities endorse the planning process and final
outcome, Water Sustainability Plans can lead to
more durable decisions and reduce the potential
for conflicts between upstream/downstream
neighbours, and between society and nature.
Roles for watershed group/entity? A wide
spectrum of possible roles exists for local watershed
entities in development of a Water Sustainability
Plan, from simply encouraging (or requesting) the
Province and Indigenous governments to initiate a
Water Sustainability Plan to address an identified
regional water issue/conflict, to providing advice
throughout the process, all the way to a local entity
being designated as the entity responsible for
developing the plan (with the appropriate capacity
and resourcing).
Communities and local governments can
begin laying groundwork for water sustainability
planning now, even if there is no planning process
on the horizon. “No regrets” strategies and priority
activities include:
• Building relationships with regional provincial
staff and Indigenous governments.
• Clearly articulating the watershed conflict/
problem that a plan would help address.
• Compiling the elements of a state of the
watershed report that identifies the main
concerns, targets, available data, and monitoring
(and gaps).
• Begin engaging the broad range of rights
holders and stakeholders to articulate a long-
term sustainable vision for the local waters.
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SENSITIVE STREAM DESIGNATION KEY CONSIDERATIONS/RISKS
• This is a reactive tool not a proactive approach.
As set out in legislation, a Sensitive Stream
Designation is intended to apply in situations
where there is a fish population that is already at
risk because of damage to the ecosystem.
• Trigger not clear but will require Provincial interest
and staff or political champions.
WATER RESERVATIONSKEY CONSIDERATIONS/RISKS
• This is not a means to “claw back” water from
an overallocated system. It can only apply to
“unreserved” water for future options.
SENSITIVE STREAM DESIGNATION
(SECTION 128)
What is it? This section of the WSA was brought
forward from the former Fish Protection Act,
and enables the designation of streams and
hydraulically connected aquifers as “sensitive” if
this designation will contribute to the protection
of an at-risk fish population.
What problem does it solve? This designation
offers an opportunity for additional protection and
attention to address water supply/quantity issues.
It is intended to help protect a fish population
whose sustainability is at risk because of ecosystem
damage.
How does it work? Any new authorizations on
Sensitive Streams may have additional protections
or measures, including possible terms and
conditions related to licensing, mitigation, water
use, and monitoring and reporting. Schedule B (in
the Water Sustainability Regulation) contains the 15
designated streams from the previous section of the
Fish Protection Act.13
Roles for watershed group/entity? A local
watershed entity can encourage and work with
FLNRORD to have specific creeks, streams, rivers,
or hydraulically connected aquifers designated as
“sensitive” if there are clear concerns about fish
populations at risk and the sustainability of the
overall river system.
WATER RESERVATIONS (SECTION 39)
What is it? A Water Reservation sets aside
unrecorded (unlicensed) water in a stream or
aquifer for a specific purpose, such as: future
or ongoing treaty negotiations and agreements;
accommodating future demand for municipal
water supply; power production; or environmental
protection. A Water Reservation prohibits the
diversion of that water for other purposes.
What problem does it solve? A Water Reservation
is primarily a tool to address water supply/flow
issues to retain adequate water for, for example,
fish, future treaty negotiations, or municipal use.14
Reserves could also provide a means for Indigenous
water rights and uses (in-stream flow and/or
diversion) to be better recognized in the provincial
water licensing regime. In the past, such reserves
have been used in a number of situations, such as
retaining water in a stream for fish, future treaty
obligations, or possible municipal growth.
How does it work? Authority to reserve water
rests with the Lieutenant Governor in Council
through an Order in Council. A Water Reservation
could be established separately or as part of a Water
Sustainability Planning process.
Roles for watershed group/entity? A local wa-
tershed entity could seek to have such a reservation
created to protect flows for fish and for other
important ecological, cultural, and social water uses.
1 1
The Importance of Unbiased Decisions
Fettering is an Old English term meaning to shackle or restrain. In the realm of statutory decisions
and governance, fettering occurs when a formal decision-maker allows themselves to be constrained
in some way. Any statutory decision-maker—as set out in legislation such as the Water Sustainability
Act or as part of administrative law—is required to come to their decisions with an open mind and
ensure they are taking into account relevant considerations and not irrelevant information. These types
of formal decisions would be bound by fundamental aspects of administrative law and should follow
some core concepts including:
• decisions follow the legislation
• the designated decision-maker must be the one making the decision and be unbiased
• decisions must be procedurally fair
It is perfectly acceptable for decision-makers to take advice and consider all the relevant facts, including
local context, priorities, and any specific technical or expert knowledge. The key point is that a decision
must be reached with an open mind and not be predetermined or prejudiced and should avoid
any perception of bias.
ADVISORY BOARDSKEY CONSIDERATIONS/RISKS
• Requires Government interest to initiate and
appoint board members.
• Scope of impacts on decision-makers uncertain,
as boards are only advisory in nature.
• May involve resources and costs to the Province.
• Ensuring statutory decisions are not fettered and
are unbiased
PAUSE
ADVISORY BOARDS (SECTION 115)
What is it? Advisory Boards can be established
to provide advice to the Province (and statutory
decision-makers) on several aspects of the Act
or regions in the Province, including but not
limited to: establishing Water Objectives; methods
for determining environmental flow needs; and
standards and best practices for diversion/water
use. Advisory Boards can be local or provincewide
in scope. They do not have decision-making
authority, but allow for a formalized and rigorous
role to provide local expertise and knowledge into
statutory decision-making.
What problem does it solve? Advisory Boards
provide a formal vehicle through which expertise
and local “advice” and input can help create the
standards, methods, and water management
approaches under the Act. This strengthens
accountability and allows greater diversity,
knowledge, and perspectives to shape the statutory-
decision-making process.
How does it work? Creation of Advisory
Boards requires action by the Minister of Forests,
Lands, Natural Resource Operations and Rural
Development (FLNRORD), who appoints the
Board Chair and members.
Roles for watershed group/entity? Local water
entities could provide recommendations on
appointing Advisory Board members and develop-
ing the terms of reference or scope of consideration.
A local watershed entity could potentially be
designated as an Advisory Board itself.
1 2
DELEGATED AUTHORIT YKEY CONSIDERATIONS/RISKS
• Which decisions are going to be delegated,
and which actors can legitimately make those
decisions, would need to be clearly specified.
• Does not include the ability to delegate Minister
decisions or those requiring Cabinet approval
(Order in Council), such as setting Water Objectives
or initiating Water Sustainability Plans.
• Resource/accountability/enforcement
mechanisms needed.
• Legal liability and risk—statutory decisions can
be appealed.
• Would need to be explicit of the complementing
Indigenous Law framework.
DELEGATED AUTHORITY (SECTION 126)
What is it? This section of the Act introduces the
possibility to delegate certain statutory decisions
under the WSA to another “person or entity.” Deci-
sions available for delegation include those made by
the comptroller, water manager, engineer, or officer
(but not Orders in Council, such as regulations,
or decisions made by the Minister). Examples
might include approvals or water licensing.
What problem does it solve? This provision
of the WSA provides a way to shift the locus of
decision-making—shifting away from top-down
government approaches and bringing increased
authority closer to local communities and those
impacted by decisions and more familiar with
watershed issues and consequences. This could
help create more durable decisions based on local
expertise, leadership, and buy-in. This provision
does not necessarily mean the Province will have
no role, but rather that authority for some decisions
could be shared, strengthening the potential for
partnerships and local participation and buy-in.
How does it work? It is not yet clear how this
delegated authority process would work. Clear
criteria, resources, and accountability measures will
absolutely be required to ensure legitimacy and
capacity to take on formal (and legally defensible)
statutory decision-making.15 Importantly, clarity
is also needed on how this process would interact
with Indigenous law and authority. For example,
a co-governed local watershed by the Province and
Indigenous nations could be empowered by both
the Provincial authority in the Water Sustainability
Act and through Indigenous authority and laws.16
Roles for watershed group/entity? Section
126 could provide (in the long term) an avenue
through which a local watershed entity—with
the appropriate institutional structure, capacity,
and accountability and legal support—could
directly draw down authority for specific aspects
of WSA decision-making. The institutional
form of the watershed entity will be critical. For
example, a bilateral government-to-government
decision-making table—between the Province and
Indigenous nations—with supporting stakeholder/
advisory committees is one possible approach that
respects the government-to-government nature of
the Crown-Indigenous relationship. Even with
this kind of bilateral model, roles will still exist
for other groups in supporting, informing, and
participating in the process (e.g. data/information,
advice, capacity).
1 3
Community, watershed entities, and local government
• Support and participate in local planning and governance• Provide local expertise and knowledge• Manage local systems• Promote wise use of water• Contribute to “state of our water” reporting• Undertake water stewardship and encourage conservation
Licence holders
• Monitor and report water use• Ensure efficient and beneficial water use• Participate proactively in planning and water
governance• Pay fees and rentals• Comply with water regulations and thresholds• Undertake water stewardship
APPROACH• Shared risk and responsibility• Local solutions• Leadership for stewardship• Long-term water planning and decision-making• Water for nature with sustainable outcomes
Partnership Model for British Columbia: Roles and Responsibilities17
21st Century Management and Governance
New Patterns of Water Use
First Nations
• Co-lead and engage with local watershed organizations in planning processes and decisions
• Share government-to-government decision-making with the Province• Develop Nation-specific water stewardship programs• Collaborate with other levels of government and First Nations
to establish rules and legal framework (see list of activities in Province box)
Province with support of federal government
• Work with First Nations to co-create processes for shared decision-making for water management and planning
• Establish rules and legal framework in conjunction with First Nations, including:• Set thresholds and objectives• Gather and report water use• Collect water rentals• Provide adequate resources for water management• Conduct “state of our water” reporting• Initiate and support local planning initiatives• Provide science, data, and analysis• Provide water stewardship
5. Conclusion: Moving Forward with a Partnership Approach
As water managers and communities grapple with British Columbia’s increasing water challenges,
the need for a partnership approach is more clear now than ever. Senior governments will
continue to play an important role in water management and implementing their water laws,
such as the Water Sustainability Act, but top-down management approaches are no longer
sufficient. Many sources of authority and expertise—and creativity and innovation—are needed to create
a resilient and sustainable water future.
Implementing the WSA to its fullest potential to address the very real problems emerging in B.C.
watersheds will only happen with the leadership of Indigenous nations, communities, and watershed
entities working together with the Province to deploy the Act’s keys tools and levers for change.
All partners will be required to contribute and, ultimately, will need to work together in each watershed
under a shared risk and responsibility approach to water management and governance. The partnership
model diagram below illustrates the kind of relationships needed to fulfil the potential of this approach.
Moving from today’s status quo to a more robust and sustainable system will require significant effort,
but the possibilities do exist now.
1 4
NOTES
1 This document will be updated periodically to reflect ongoing developments as aspects of the WSA are implemented over time.
2 See https://poliswaterproject.org/polis-research-publication/awash-opportunity-ensuring-sustainability-british-columbias-new-water-law/
3 See https://www.freshwateralliance.ca/bc_drought_message_guide
4 See https://www.fnfisheriescouncil.ca/wp-content/uploads/2018/09/FNFC-ProtectingWaterOurWaySingles_FINAL-updated-by-AA.pdf
5 To date, one Provincial Watershed Governance Pilot has been initiated in the Nicola Watershed. For details, see the news release about the Memorandum of Understanding signed by the Province and five Nicola Chiefs in March 2018: https://news.gov.bc.ca/releases/2018ENV0012-000484
6 The WSA specifies that water objectives can be applied to “a watershed, stream, aquifer or other specified area or environmental feature or matter.” See section 43(a). http://www.bclaws.ca/civix/document/id/lc/statreg/14015#section43
7 See Water Sustainabilty Act section 43(5)(d). http://www.bclaws.ca/civix/document/id/lc/statreg/14015#section43
8 See Water Sustainabilty Act section 43(4). http://www.bclaws.ca/civix/document/id/lc/statreg/14015#section43
9 Environmental flow needs are defined in the WSA as, “the volume and timing of water flow required for the proper functioning of the aquatic ecosystem of the stream.” A critical environmental flow is defined as “the volume of water flow below which significant or irreversible harm to the aquatic ecosystem of the stream is likely to occur.” See http://www.bclaws.ca/civix/document/id/lc/statreg/14015#section1
10 The Okanagan Basin Water Board’s Environmental Flow Needs Project is a leading example in B.C. of a collaborative intiative to develop and customize robust methods for determing environmental flow needs in local streams. See http://www.obwb.ca/efn/
11 Curran, Deborah and Oliver M. Brandes. (2018, forthcoming). Water Sustainability Plans: Potential, Options, and Essential Content. Innovation Discussion Brief.
12 A Water Sustainability Plan is being contemplated for the Nicola Watershed according to the terms of the March 2018 Nicola Watershed Pilot Memorandum of Understanding between the Province and Five Nicola Chiefs. See https://news.gov.bc.ca/releases/2018ENV0012-000484
13 For a list of the 15 previously designated Sensitive Streams, see http://www.bclaws.ca/civix/document/id/complete/statreg/36_2016#ScheduleB
14 For details on Water Reserves and list of current Water Reservations, see: http://www.env.gov.bc.ca/wsd/water_rights/scanned_lic_dir/Water%20Act%20Reserves/
15 Persons or entities would need to fully understand their obligations as a decision-maker, including the necessity of being neutral and unbiased, and allow themselves to be fettered in their decisions (see Box p. 12). These types of decisions can be appealed and the decision-maker would need to be able to rigorously defend their decision before a tribunal or the courts.
16 This type of dual authority approach is modelled in the Haida Gwaii Management Council, created under the 2009 Kunst’aa Guu – Kunst’aayah Haida Reconciliation Protocol. The Management Council is a permanent table to which both the Crown and the Haida Nation delegated their respective authorities to make joint, consensus decisions on strategic land and resource management issues. See http://www.haidagwaiimanagementcouncil.ca/index.php/faqs/.
17 Diagram originally published in: Brandes, O.M., Carr-Wilson, S., Curran, D., & Simms, R. (2015, November). Awash with Opportunity: Ensuring the Sustainability of B.C.’s New Water Sustainability Act. Victoria, Canada: POLIS Project on Ecological Governance, University of Victoria. Available at https://poliswaterproject.org/polis-research-publication/awash-opportunity-ensuring-sustainability-british-columbias-new-water-law/
POLIS Project on Ecological GovernanceCentre for Global Studies, University of VictoriaPO Box 1700 STN CSCVictoria, BC V8W 2Y2 CanadaTel: 250-721-8800Email: [email protected]
Centre for Global Studies
The Centre for Global Studies (CFGS) was
formally established at the University of
Victoria in 1998 with a mandate to promote
collaborative, multidisciplinary, and cross-
regional research and engage in connecting
research in the field of global studies to local,
national, and international communities.
Activities at the Centre are designed to
promote critical citizenship in a complex
and rapidly changing global environment.
The CFGS has a rich history of producing
cutting-edge research and disseminating it
in concise and accessible ways for policy- and
decision-makers and the broader community.
www.uvic.ca/research/centres/globalstudies/
POLIS Water Sustainability Project
The POLIS Water Sustainability Project develops
cutting-edge research to improve freshwater
decision-making and management. We share
solutions with those working on the ground
(and in the water), including communities,
experts, government (local, Indigenous,
provincial, federal), and non-governmental
and Indigenous organizations. By combining
practical expert research with community action,
it works to increase understanding of freshwater
issues and to drive law, policy, and governance
reform to generate change towards a sustainable
freshwater future.
The POLIS Water Sustainability Project is a
focused initiative of the University of Victoria’s
POLIS Project on Ecological Governance.
It is housed at the University of Victoria’s
Centre for Global Studies as one of its ongoing
interdisciplinary projects.
www.poliswaterproject.org
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